Why FISA Court Judges Rule The Way They Do

OK. So federal judges, in secret, have blasted the National Security Agency for years, for violating rules governing U.S. surveillance programs. Then the judges have gone ahead and approved those programs anyway. We know this because of leaks by NSA contractor Edward Snowden, and from documents released by the government. They have revealed new information about how the secret court works. NPR's Carrie Johnson has this report on whether it is possible for the court to control the NSA.

CARRIE JOHNSON, BYLINE: Even the government now acknowledges its programs to monitor Americans' phone calls and emails repeatedly skirted the orders of the Foreign Intelligence Surveillance - or FISA - court. A newly released judge's opinion suggests one program, now defunct, failed to comply with the law during all the years it operated.

JAMEEL JAFFER: The rules that the NSA operates under are so permissive. And yet, the NSA has managed to violate them repeatedly.

JOHNSON: Jameel Jaffer is deputy legal director at the ACLU.

JAFFER: I don't think that's an indication that the courts can't oversee these kinds of programs. It's an indication that the particular oversight process that we have in place right now, doesn't work.

JOHNSON: Critics liken the secret surveillance court to a rubber stamp. But old rulings that have been released this winter demonstrate those judges were often frustrated with the NSA's lapses. Judge John Bates called out the agency for continually collecting too much information, and misrepresenting its activities to the court for years. His recently released opinion said the NSA vacuumed up more information on American citizens than it was supposed to, then wrongfully shared the content of email messages with other people in the government who were not empowered to receive it.

Still, Bates - like other members of the secret court - almost always gave the agency a green light to do more despite the violations. Elizabeth Goitein co-directs the National Security Program at the Brennan Center for Justice.

ELIZABETH GOITEIN: There's a sense that's emerging from what we're learning about how this court operates, that it really does see its job as getting to yes.

JOHNSON: Goitein says the judges are forced to rely on the government for the facts and technical details about how the surveillance programs work.

GOITEIN: And when you read these opinions, it doesn't look like the judges are trying to find the best interpretation of the law. It looks like they are trying to find an interpretation of the law that can plausibly sustain what the government has asked to do. And that's not the role of a court.

JOHNSON: A spokesman for the court declined to comment for this story. But the court, and the surveillance programs themselves, have some prominent defenders. Among them is former judge and U.S. attorney general Michael Mukasey. Mukasey recently told an audience at the Federalist Society that reform proposals on the table - things like putting an adversary inside the court to argue against the government, and limiting phone record collection - could undermine national security.

MICHAEL MUKASEY: This is enormously important because it is the only outward-facing intelligence gathering program in the United States - the only one. And if we tinker with it and mess with it, we are going to be crippling ourselves.

JOHNSON: For experts who have followed surveillance for years, the sheer number of phone calls and e-mails the U.S. has gathered means it's almost impossible to police such a secret organization. Jennifer Granick is director of civil liberties at the Stanford Law School Center for the Internet and Society.

JENNIFER GRANICK: Mess up in a mass surveillance world, you get a massive mistake. And those mistakes have led to collection of lots of information about Americans that's supposed to be off-limits.

JOHNSON: Granick says adding new oversight, more technology and better rules might help bring those programs in line. But she's not convinced that surveillance this complicated can ever be controlled.

GRANICK: You may be seeing evidence that there is no way to make bulk collection and mass surveillance work in a democracy - period; that it is just incompatible with a democracy.

JOHNSON: Those big decisions, she says, need to be made by Congress, not federal judges acting in secret.